Forbes-Smith v Forbes-Smith
| Jurisdiction | England & Wales |
| Date | 1901 |
| Year | 1901 |
| Court | Court of Appeal |
Divorce - Jurisdiction - Costs - Co-respondent - Consolidated Suits - Appeal - Final or Interlocutory Order - Leave to Appeal -
A wife having filed a petition for judicial separation, on the ground of her husband's cruelty, the husband afterwards filed a petition for dissolution of the marriage. An order was made for the consolidation of the two suits, and they came on for trial together. The wife's charge against the husband was withdrawn, there being no evidence in support of it; and her petition was dismissed. On the husband's petition a decree nisi was made for dissolution of the marriage, with costs and damages against the co-respondent, and the decree was afterwards made absolute:—
Held, that the consolidation order had not the effect of making the proceedings on the wife's petition part of the proceedings on the husband's petition, and that consequently there was no jurisdiction under s. 34 of the Matrimonial Causes Act, 1857, to order the co-respondent to the husband's petition to pay the costs of the proceedings on the wife's petition.
The question whether the co-respondent could be ordered to pay the costs of the wife's petition arose upon the taxation of the costs under the final decree, and was referred by the registrar to the Court.
The President decided that there was jurisdiction under s. 34 to order the co-respondent to pay these costs:—
Held, that this order was part of the final decree, and that consequently an appeal against the order could be brought without the leave of the Court.
UPON the taxation of costs against the co-respondent to this suit a question arose as to the extent of the jurisdiction conferred by s. 34 of the Matrimonial Causes Act, 1857.
The question was referred by the registrar to the Court.
On February 2, 1900, the wife presented a petition for a judicial separation, on the ground of her husband's cruelty.
On March 27, 1900, the husband presented a petition for the dissolution of the marriage, on the ground of the wife's adultery with the co-respondent Chadwick, claiming also damages against the co-respondent.
On April 26, 1900, the registrar made an order that the husband's suit should be consolidated with the wife's suit. Before this order was made the registrar sent in the ordinary way a notice to each of the parties (including the co-respondent) of his intention to make it, inviting each party to shew cause against the order. The co-respondent did not raise any objection to the making of the order.
The wife by her answer to the husband's petition, filed June 2, 1900, merely denied the alleged adultery. The co-respondent by his answer, filed June 7, 1900, also denied the adultery.
The suits came on for trial by the President with a jury on July 18, 1900. The wife's counsel then stated to the Court that they had no evidence in support of the charges of cruelty against the husband, and that they must withdraw those charges. The wife's petition was accordingly dismissed. On the husband's petition the jury found that the adultery was proved as against the wife and the co-respondent, and they awarded 1250l. damages against the co-respondent. A decree nisi was made for dissolution of the marriage with costs and damages against the co-respondent. On January 28, 1901, the decree was made absolute.
On the taxation of costs the husband claimed to tax against the co-respondent, not only his costs of his own petition, but also his costs of the wife's petition, on the ground that by reason of the consolidation order the proceedings in the two suits were united and had become “the proceedings” within the meaning of s. 34F1 of the Matrimonial Causes Act, 1857. The matter was referred by the registrar to the Court.
H. Durley Grazebrook, for the husband.
R. E. Moore, for the co-respondent.
May 20. SIR F. H. JEUNE P. This case raises the question whether when there is a petition by a wife for a judicial separation, and afterwards the husband petitions for a divorce, a co-respondent being of course joined, and, the suits being before the trial consolidated, the husband succeeds on his petition and the wife fails on hers — whether under these circumstances the co-respondent can be ordered to pay the costs, not only of that part of the consolidated suit to which he was a party, but also of that part of the consolidated suit to which he was not a party. It is, I think, remarkable that, though it has been usual to order a co-respondent to pay costs in such a case, the question has never been formally decided before; but so it is, and there is no distinct authority upon it.
Now s. 34 of the Act of 1857 is, I think, that which governs this matter. [The learned judge read the section.] It speaks of “the costs of the proceedings” – not of the proceedings specifically of that petition, but of “the proceedings” in the most general terms. I think the words in their collocation are important. But it is said that in case I should think that s. 34 of the Act of 1857 is not sufficient to enable me to order the co-respondent to pay the costs of the proceedings in the wife's suit, s. 5 of the Supreme Court of Judicature Act, 1890, would authorize me to do so. The words of that section are no doubt extremely general. [The learned judge read the section.] I agree that the decisions upon that section shew that it was intended to confer in some cases a new jurisdiction. But, in the first place, though the words are so general, it cannot, I think, be doubted that this limitation must be understood — that the person who is ordered to pay the costs is connected with the proceedings. It cannot be supposed for a moment that a person not interested in or connected with the proceedings could be ordered to pay the costs of them. Therefore, I think the section must be read with that limitation; and if that is so, it does not help the present respondent, because the very question on this appeal is, whether the co-respondent was sufficiently connected with the proceedings initiated by the wife to enable an order for costs of those proceedings to be made against him. But, moreover, this s. 5 is in terms made subject to the express provisions of any statute. Therefore, it is subject to the express provisions of s. 34 of the Act of 1857, and I think it may be fairly said that the special provision of s. 34 was not intended to be affected by the more general provision of s. 5 of the Act of 1890. We come back, therefore, to the provision of s. 34 of the Act of 1857.
The facts, so far as they are material, are these. Upon the evidence I cannot doubt that the association between the wife and the co-respondent must be carried back at least as far as April, 1899. Then on August 8, 1899, she left her husband, and on February 2, 1900, she filed her petition for a judicial separation, and his petition for a divorce followed on March 27. On April 26, 1900, the two suits were consolidated, and they were afterwards set down and were heard together.
The charges brought by the wife were charges of cruelty and it is quite clear, first, that they were never...
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